Burtman

Court jester

The annals of human history include countless extraordinary achievements by men and women of vision and courage. The sciences, politics, art, religion and every other field are crowded with genius and accomplishment. The identities of those who first harnessed fire, developed written language and distilled alcohol are lost in the mists of time, but we still have such immutable icons as the ancient Greeks, Shakespeare, Einstein and Ghandi to remind us that human potential has few limits.

Now we can add another Olympian feat to those at the pinnacle, right up there with the drafting of the U.S. Constitution, the signing of the Magna Carta and mapping the human genome. In a recent interview with the Greensboro News & Record, North Carolina Supreme Court Chief Justice I. Beverly Lake Jr. proclaimed that the state's system of death-penalty review is "as accomplished as any human endeavor."

Further expounding, Lake continued: "We have it down to a fine art."

Forget for a minute the sheer arrogance of the statements, or the laughable notion that Lake and his elected colleagues in the state judiciary can measure up to the great minds of the present day, let alone centuries past. Especially given that voters know next to nothing about the candidates, and getting a seat on the bench is more a factor of name recognition, party affiliation and fundraising ability than judicial merit. And this from a Tar Heel blueblood, who piggybacked to the court in 1995 on the name of his famous father, the former segregationist and failed gubernatorial candidate who also served on the state's highest court.

As chief justice, Lake is an active cog in the state's machinery of death; the Supreme Court rules on the initial appeal and again at the end of the process, if a case gets that far. To imply that the state system is so beautifully designed that all errors will eventually be caught is to abdicate responsibility for lapses in judgment that he or anyone else on the court might make. And, as federal judges have recently determined, they make their fair share, proving that gauging fine art is indeed a subjective experience.

In February, Kenneth Rouse won a round in his case--not from the state, which had rejected his motions every step of the way, but from a three-judge panel of the ultra-conservative federal 4th Circuit Court of Appeals, which had not granted relief in a death penalty case the previous 10 years. Rouse, who is black, faced an all-white jury; in order to gain a seat on the panel, one of the jurors admittedly hid the fact that his mother had been raped and murdered. That same juror routinely used racial slurs and said after the trial that "black men rape white women so they can brag to their friends," and "blacks do not care about living as much as whites do." That was apparently not sufficient for Lake and his colleagues.

Later in the month, Tim Allen won a reprieve from a different 4th Circuit panel on two claims that had been repeatedy dismissed by the state. "Allen's evidence of discrimination is compelling," the opinion read, continuing that "the North Carolina Supreme Court flatly refused to consider all of the facts and circumstances of discrimination that Allen proffered."

Similarly, former Gov. Jim Hunt granted clemency to Marcus Carter in November 2000 after the state courts had pushed him to the brink of execution. The 4th Circuit, procedurally restricted from overturning the conviction, nevertheless blasted a state judge for taking all of an hour to look at more than 300 pages of important documents before passing judgment. "It strains common sense to accept the proposition that an hour was a sufficient amount of time to review these materials thoroughly and reach an independent, reasoned decision," the judges wrote. Their opinion in part convinced Hunt that Carter had not received a fair shake in the courts.

North Carolina's bureaucratic Mona Lisa has further flaws. The U.S. Supreme Court put a halt to the execution of Ernest McCarver after Lake's court had dissolved a stay and cleared the way (and Gov. Mike Easley had denied clemency), despite clear evidence that McCarver was mentally retarded--before the high court could rule on the case, North Carolina passed a law banning the practice. It took clemency from Easley to save the lives of Robert Bacon and Charlie Alston, whose cases were respectively tainted by racism and missing DNA evidence, neither of which bothered the courts.

To those who regularly work on death penalty issues (including this columnist), the system's many blemishes are the norm, not the exception. Even conservative supporters of capital punishment have recognized that the state system more resembles a crapshoot than a fine-tuned instrument. The only consistent theme is the unflagging denial of any significant problems by those most responsible for them. Those include Lake and Attorney General Roy Cooper, whose office has made a mockery of justice in the Alan Gell case by dragging out his unjust incarceration--and now, outrageously, pursuing a retrial--for political reasons.

In addition to his job presiding over the Supreme Court, Lake also chairs the N.C. Actual Innocence Commission, which the judge himself convened. Lake cited the need for such a commission in the wake of revelations of several innocence cases, including those of death row inmates Charles Munsey and Alan Gell, victimized by prosecutors who withheld evidence that would have weakened or destroyed their cases. Lest anyone think Lake was going soft on crime, he stated that in addition to looking at ways to keep innocent people out of prison, the commission would attempt to boost public confidence in the criminal justice system, maintain support for the death penalty, and (what anyone would expect an innocence commission to do) help convict the guilty.

Lake may assert that Gell and Hamilton were aberrations that will not be repeated, though it would be interesting to hear his take on why prosecutors cheated in both cases, and why he thinks that's unusual. But more cases of innocence--on death row and off--are awaiting exposure. Odds are it won't be the Innocence Commission that will ferret out the facts, or Cooper's office that will find and admit mistakes. Instead, the wrongly convicted will have to rely (as they always do) on the luck of the draw to get good lawyers or aggressive reporters willing to dive headfirst into the murk.

Thus far, the only action the commission has taken is to demand--at the insistence of Lake and Cooper--that all references to it be removed from the moratorium bill being considered in the legislature. Such squawking may be a political ploy, an excuse for the hawks on the commission to resign rather than take a close look at cases involving, say, prosecutorial misconduct by their brethren. Regardless, Lake has noted a few possible changes the commission might someday recommend, such as less reliance on snitch testimony, that have already been considered or adopted in other states. Commission members have mentioned the possibility of establishing an executive panel to look at specific innocence claims after the cases have worked their way through the courts.

Given Lake's belief that the system already approaches perfection, however, it seems unlikely that he would pursue such a safety valve or any other serious reforms. Why bother, if the apogee of accomplishment has already been reached?

Lake may have been indulging in a bit of supreme hyperbole, even if his those not aware of his magnitude might interpret his comments as delusional. Or perhaps the remarks were intended as a joke that us lesser beings simply missed. But they irreparably compromise any notion that the judge can take a fair and impartial look at innocence or any other issue that could further erode public faith in state institutions. The integrity of the Innocence Commission will be best served if Lake resigns and another, less ideologically rigid jurist is appointed in his place. That goes for self-styled "People's Lawyer" Cooper as well.

That won't happen, of course. When the commission eventually winds down its work, Lake will simply fold the results into his theory that the best systems can still be improved. As he acknowledged to the News & Record, there's always room for tiny little tweaks: "Anything done by man is not going to be perfect."